DISGRACEFUL
DISSENTING OPINION ON DIGNITY

Michael Sean Quinn*

Whether gay men, lesbian women, or anyone else, for that
matter,  have a right to same sex
marriage was resolved by the Supreme Court of the United States and was
determined in the affirmative earlier this year in a classic split opinion. The
majority opinion will become studied, revered, reviled, and influential for
generations to come.  It is a humane,
brilliant, progressive and even profound piece of jurisprudence. It will be
unforgotten, often discussed, and frequently cited a hundred years from now.

It is more than merely consistent with the Constitution as it
must be understood and applied in the Twenty First Century.  As with many “overarching,” fundamental (or
foundational), history-making decisions, at least some political philosophy at
home in our country is to be gleaned from or glimpsed in it.

The much simplified, by me, basic argument of the majority
was this. The Constitution both presupposes and silently includes and embraces,
and/or actually implies (or entails) a range of fundamental rights that are not
there explicitly or specifically asserted. For generations courts have been
discovering, unearthing, formulating, reformulating, and recasting such rights.
Sometimes these processes have involved the use of imagination and intuition,
though it must be remembered that the use of imagination in acts of discovery
and even confirmation do not imply that what has been discovered is imaginary. (I
mention imagination only here because initial reliance on intuition in
lawyering and judging is uncontroversial.)

Underlying these fundamental rights is an even deeper one (or
set of them), and these can be thought of as [like] a single human right—a
right of or to fundamental human dignity. 
That basic idea generates more, justifies, or provides the foundation
for other fundamental rights. One of those is the right to marry, as the
Supreme Court has been repeatedly recognizing for many years in other
contexts. 

(It is difficult to embrace the idea that our Constitution
is not designed to stick up for and protect human dignity.  In fact that is one of the ideas underlying
our whole legal system—underlying the constitution of our country and
its jurisprudence. Deeper forms of “American exceptionalism” are based in part
on this idea. That is one of the themes in our culture that makes us
inhabitants of the “city on the hill.”)

In this case, Obergefell
v. Hodge, #114-556, 576 U.S. ____
[135 S.Ct. 2584] (2015) the Court (through its majority) includes homosexuals
within that right—the right to marry each other—on the basis of their right to
dignity.  In effect, the Court said that
they have a right to dignity in conjunction with marriage, like anyone else,
and it should not be denied them, because to do that would deny or abridge
their dignity.

Technically, then, the Court’s opinion was based on applications
of the principles contained in the Due Process Clause and the Equal Rights
Clause.  The first of these is generally taken
to be the key to the majority’s argument. Myself? I would have put the second
first; I think the former derives from the latter in this kind of case.  But then who am I to judge?—a question asked
by someone else in a sort of related context, not long ago.

The dissenting opinions were, for the
most part, predictable and routine: the Constitution does not contain the word “dignity,”
and so it does not protect that right, if it is one; the constitution does not protect
would-be rights that can only be vaguely formulated; the constitution does not explicitly
regulate marriage; marriage regulation should be left  to the states, and states have rights too; “forever”
(for 2000+ years the term “marriage”—and therefore the concept of marriage has almost
always in Western civilization referred to one man and one woman); etc. All the
usual stuff is there and is well presented, as usual.  

(Of course, for at least that length
of time secretly gay men and lesbian women have been living with each other as
if married. “Don’t ask; don’t tell” has been a silently established cultural
principle in many cultures and civilizations for at least the same length of
time. This proposition is seldom asserted by anyone; one wonders why not.)

One part of one of the dissenting opinions, however, ranks
down there among the worse opinions—and/or one of the worse arguments ever given
in a judicial opinion—ever set forth in a SCOTUS decision.  The author of this opinion—the purveyor of
this truly wretched piece of work should be ashamed.

The writing-Justice proceeded in the following way, more or
less. Dignity is not a human characteristic which needs protection by law and
therefore not by the Constitution. It need not be protected because it cannot
be taken or destroyed.  It is innate to
human beings and so cannot be snuffed out, eliminated, destroyed, stolen, taken
away, stripped away, or abridged. It cannot even be diminished. It is an
absolute.   It’s not like having an arm,
for example; one’s arm can be cut off, and one remains a human being. The
dignity of being a human being cannot be cancelled out; there is no and cannot
be a “poof-it’s-gone” action or set of actions.  If you are a human being you have dignity, and
no one can take it away from you. If you have it, and all human beings do by
metaphysical necessity, you will always have it no matter what.

Even death does not eliminate dignity from a human being;
there is simply no more human being in existence to have it. (Curiously, this
brand of “innateness” strikes the observer as having a special theological found,
but that it not really relevant here, it’s simply a speculative side comment.)  

The Justice who wrote this opinion did not actually use the
following examples, but it is easy to conceived his doing so, and they are
consistent with the opinion. Indeed, they are probably not just consistent with
the argument in the opinion; they are entailed by it. It is easy to see,
however, why these paradigms would not be used.

Here they are.  (1)
Jews cast into death camps by Nazis were not denied or stripped of their
dignity, since it was innate to them. And then there is this one. (2) Slaves in
America—and everywhere else—were (and are) not denied their dignity by being
made slaves, by being repeatedly whipped and otherwise tortured like unruly dogs,
 by being starved for lacks of
submission, by having their faces pissed upon, and by having their families
sold off. Why not? Because their dignity was innate to them; it could not be
stricken or reduced.

Similarly, the “dogs” that did the whipping or the pissing,
had as much dignity as anyone—indeed everyone–else, even while doing the
whipping, etc., and bragging about it, since they are human beings and dignity
is an innate property of all human beings.) Remember. “All [persons] are
created equal.” Thus, people cannot strip themselves of their own dignity in
any way, ever. What is innate, stays innate.

These propositions are nonsense, of course. It is not clear
to me that all human being possess the property of having human dignity.  Arguably
they lose it precisely when they act
in inhuman ways. Similarly, someone may have it taken from him when he is
treated in an overwhelming inhuman manner. 
That would be a kind of “theft” of human dignity—not just suppression (although
there is that too)—but forced deprivation of human dignity. Some POWs, for
example, are stripped of their human dignity.

But let’s suppose that the idea of innateness is correct;
let’s do this just for the sake of argument. So we are supposing that something’s
being innate to being a person fits together with the something’s being
inalienable. And it does make sense to say that the slaves had their dignity
and that slavery only sought to extinguish it. In fact, one might say that it
was exactly this fact that made slavery so immoral; in other words, it was
exactly the fact that slavery was a kind of attempted murder of human dignity
on a mass scale t hat made it so immoral.

Of course, someone could argue—indeed some have done exactly
that—black slaves did not have dignity at all, ever. They didn’t have it
because there were enslaved.  They did
have it—ever!—because they were black, and those people were not fully
human.  In other words, they were not
human enough to have human dignity.

However, let’s take another look at the slavery case. If you
suppose that  human dignity is
inseparable from being human and is important, then the outrageous offense
would not be prying away or somehow eliminating someone’s dignity. Having dignity
is what it is, and that is permanent.

Rather, it would be either its reduction (having less that
someone else) or the abridgment of having consciousness of, pride in, or less
than a few fleeing doubts regarding one’s own dignity. Once state sponsored abridgments
of a person sense of dignity becomes correctly conceived, persons with
dignity—that is to say all of them–must be thought of as having a right, viz.,
the right not to have their sense of themselves as human beings with dignity
crushed, filed away, or burned at a stake, as it were.  

The distinction between having
dignity and being conscious of having
dignity is a distinction for academic, philosophy professor literature, not
for judicial decisions. The locution “has dignity” is good enough for practical
jurisprudence to reach out and include “being consciousness” of having
dignity.  It works for the idea of the
destruction of human dignity in or for a human person. It also works for the
idea of acts causing the substantial reduction in cases of being conscious of
having dignity.  The law should be taken
to cover this kind of subjective state. It must be remembered that we cannot be
the city on the hill without this kind of encouragement, and that which is encouraged
must be respected and protected by the city’s jurisprudence.

Michael Sean Quinn, Ph.D., J.D., C.P.C.U. . . .

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